till the death of the defendant, if he be tenant for life or in tail (15). During this period the plaintiff is called tenant by elegit, of whom we spoke in a former part of these commentaries (h). We there observed that till this statute, by the ancient common law, lands were not liable to be charged with, or seised for, debts; because by these means the connexion between lord and tenant might be destroyed, fraudulent alienations might be made, and the services be transferred to be performed by a stranger; provided the tenant incurred a large debt, sufficient to cover the land. And therefore, even by this statute, only one half was, and now is, subject to execution; that out of the remainder sufficient might be left for the lord to distrain upon for his services. And upon the same feodal principle, copyhold lands are at this day not liable to be taken in execution upon a judgment (i). But, in case of a debt to the king, it appears by magna carta, c. 8. that it was allowed by the common law for him to take possession of the lands till the debt was paid. For he, being the grand superior and ultimate proprietor of all landed estates, might seise the lands into his own hands, if any thing was owing from the vassal; and could not be said to be defrauded of his services, when the ouster of the vassal proceeded from his own command. This execution, or seising of lands by elegit, is of so high a nature, that after it the body of the defendant cannot be taken but if execution can only be had of the goods, because there are no lands, and such goods are not sufficient to pay the debt, a capias ad satisfaciendum may then be had after the elegit; for such elegit is in this case no more in effect than a fieri facias (j). So that body and goods may be taken in execution, or land and goods; but not body

:

and land too, upon any judgment between subject and subject [*420] in the course of the common law. But,

5. Upon some prosecutions given by statute; as in the case of recognizances or debts acknowledged on statutes merchant, or statutes staple (pursuant to the statutes 13 Edw. I. de mercatoribus, and 27 Edw. III. c. 9.); upon forfeiture of these, the body, lands, and goods may all be taken at once in execution, to compel the payment of the debt. The process hereon is usually called an extent (16), or extendi facias, because the sheriff

(h) Book II. ch. 10. (i) 1 Roll. Abr. 888.

(15) And the sheriff is not bound to deliver a moiety of each particular tenement and farm, but only certain tenements, &c. making in value a moiety of the whole. Doe d. Taylor v. Earl of Abingdon, 2 Doug. 473. He should return that he had delivered an equal moiety of the premises, and should set it out by metes and bounds, or the return is void. Fenny d. Masters v. Durrent, 1 B. & A. 40. And the obligation lies at Nisi Prius on the trial of the ejectment. And where the sheriff delivered one moiety, and upon a second elegit, the other was held to be wholly void. Morris v. Jones, 3 D. & R. 603. 2 B. & C. 232. S. C.

It has been considered in practice that although the sheriff might deliver the moiety to the plaintiff in elegit, yet that executory ejectment was necessary to complete his title; but, semble, that entry is good under the writ. Rogers v. Pitcher, 6 Taunt. 202.

An examined copy of the judgment roll, containing the award of the elegit, is evidence VOL. II.

(1) Hob. 58.

of the plaintiff's title; and, in action for use and occupation against the tenant, the production of a copy of the elegit and of the inquisition thereunder is unnecessary. Ramsbottom v. Buckhurst, 2 M. & S. 565.

The defendant, in the writ of elegit, may, on motion, obtain a reference to the master to take an account of rents, &c. received by the plaintiff, and if it appear that the debt and costs have been satisfied, possession will be restored. Price v. Varney, 5 D. & R. 612. 3 B. & C. 733. S. C.

(16) The writ in aid was formerly grossly abused; the king's name often became an engine of great fraud or oppression, to remedy which, stat. 57 Geo. III. c. 117, was passed. The abuse to which I have adverted was this; not only any person indebted or likely to be indebted to the crown on specialty or record, but any one so indebted in part, or by simple contract, only, might obtain the extent in aid to be issued in his favour. The instant that 44

is to cause the lands, &c. to the appraised to their full extended value, before he delivers them to the plaintiff, that it may be certainly known how soon the debt will be satisfied (k). And by statute 33 Hen. VIII. c. 39. all obligations made to the king shall have the same force, and of consequence the same remedy to recover them, as a statute staple; though indeed, before this statute, the king was entitled to sue out execution against the body, lands, and goods of his accountant or debtor (1). And his debt shall, in suing out execution, be preferred to that of any other creditor, who hath not obtained judgment before the king commenced his suit (m). The king's judgment also affects all lands, which the king's debtor hath at or after the time of contracting his debt, or which any of his officers mentioned in the statute 13 Eliz. c. 4. hath at or after the time of his entering on the office: so that, if such officer of the crown aliens for a valuable consideration, the land shall be liable to the king's debt even in the hands of a bona fide purchasor; though the debt due to the king was contracted by the vendor many years after the alienation (n). Whereas judgment between subject and subject related, even at common law, no farther back than the first day of the term in which they were recovered, in respect of the lands of the debtor; and did not bind his goods and chattels, but from the date of the writ of execution: and now, by the statute of

frauds, 29 Car. II. c. 3. the judgment shall not bind the land in [*421] the hands of a bona fide purchasor, but only from the day of ac

tually signing the same: which is directed by the statute to be punctually entered on the record; nor shall the writ of execution bind the goods in the hands of a stranger, or the purchasor (0), but only from the actual delivery of the writ to the sheriff or other officer, who is therefore ordered to endorse on the back of it the day of his receiving the same.

These are the methods which the law of England has pointed out for the execution of judgments: and when the plaintiff's demand is satisfied, either by the voluntary payment of the defendant, or by this compulsory process, or otherwise, satisfaction ought to be entered on the record, that the defendant may not be liable to be hereafter harassed a second time on the same account. But all these writs of execution must be sued out within a year and a day after the judgment is entered (17); otherwise the court concludes prima facie that the judgment is satisfied and extinct: yet however it will grant a writ of scire facias in pursuance of statute Westm. 2. 13 Edw. I. c. 45. for the defendant to shew cause why the judgment should not be revived, and execution had against him; to which the defendant may plead such matter as he has to allege, in order to shew why process of execution should not be issued: or the plaintiff may still

(k) F. N. B. 131.

(1) 3 Rep. 12.

(m) Stat. 33 Hen. VII. c. 39, ◊ 74.

the writ issued, all the property of the debtor became liable to the extent at the suit of the crown; and thus his creditors were deprived of participation in such property, the whole perhaps being absorbed by the alleged crown debtor. But the statute mentioned above limits the issuing of this writ to cases where a debt shall be actually due to, and previously demanded on the part of the crown. Before the statute, it was sufficient that the party suggested the existence of the debt to entitle him to sue out the writ, and to the money le

(n) 10 Rep. 55, 56.
(0) Skin. 257.

vied thereon. But now the writ cannot be issued unless the sum actually due to his majesty be stated and specified in the fiat indorsed thereon; and, when levied, the sheriff is to pay the amount over to his majesty's use. Any overplus is to be paid into court subject to its disposition on summary application. The expectation of preference formerly capable of being realized is by the statute, therefore, in a great degree defeated.

(17) In New-York within two years. 2 R. S. 363. § 1.

bring an action of debt, founded on this dormant judgment, which was the only method of revival allowed by the common law (p).

In this manner are the several remedies given by the English law for all sorts of injuries, either real or personal, administered by the several courts of justice, and their respective officers. In the course therefore of the present book, we have, first, seen and considered the nature of remedies, by the mere act of the parties, or mere operation of law, without any suit in courts. We have next taken a review of remedies by suit or action in courts and therein have contemplated, first, the nature and species of courts, instituted for the redress of injuries in general; and then have shewn in what particular courts application must be made for the redress of particular injuries, or the doctrine of jurisdictions and *cognizance. We afterwards proceeded to consider the nature [*422] and distribution of wrongs and injuries affecting every species of personal and real rights, with the respective remedies by suit, which the law of the land has afforded for every possible injury. And, lastly, we have deduced and pointed out the method and progress of obtaining such remedies in the courts of justice: proceeding from the first general complaint or original writ, through all the stages of process, to compel the defendant's appearance; and of pleading, or formal allegation on the one side, and excuse or denial on the other; with the examination of the validity of such complaint or excuse, upon demurrer; or the truth of the facts alleged and denied, upon issue joined, and its several trials; to the judgment or sentence of the law, with respect to the nature and amount of the redress to be specifically given: till, after considering the suspension of that judgment by writs in the nature of appeals, we have arrived at its final execution; which puts the party in specific possession of his right by the intervention of ministerial officers, or else gives him an ample satisfaction, either by equivalent damages, or by the onfinement of his body who is guilty of the injury complained of.

This care and circumspection in the law,-in providing that no man's right shall be affected by any legal proceeding without giving him previous notice, and yet that the debtor shall not by receiving such notice take occasion to escape from justice; in requiring that every complaint be accurately and precisely ascertained in writing, and be as pointedly and exactly answered; in clearly stating the question either of law or of fact; in deliberately resolving the former after full argumentative discussion, and indisputably fixing the latter by a diligent and impartial trial; in correcting such errors as may have arisen in either of those modes of decision, from accident, mistake, or surprise; and in finally enforcing the judgment, when nothing can be alleged to impeach it ;--this anxiety to maintain and restore to every individual the enjoyment of his civil rights, without intrenching upon those of any other individual in the nation, this parental solicitude which pervades our whole legal con- [423] stitution, is the genuine offspring of that spirit of equal liberty which is the singular felicity of Englishmen. At the same time it must be owned to have given a handle, in some degree, to those complaints of delay in the practice of the law, which are not wholly without foundation, but are greatly exaggerated beyond the truth. There may be, it is true, in this, as in all other departments of knowledge, a few unworthy professors who study the science of chicane and sophistry rather than of truth

(p) Co. Litt. 290.

But

and justice; and who, to gratify the spleen, the dishonesty, and wilfulness of their clients, may endeavour to screen the guilty, by an unwarrantable use of those means which were intended to protect the innocent. the frequent disappointments and the constant discountenance, that they meet with in the courts of justice, have confined these men (to the honour of this age be it spoken) both in number and reputation to indeed a very despicable compass.

Yet some delays there certainly are, and must unavoidably be, in the conduct of a suit, however desirous the parties and their agents may be to come to a speedy determination. These arise from the same original causes as were mentioned in examining a former complaint (q); from liberty, property, civility, commerce, and an extent of populous territory : which whenever we are willing to exchange for tyranny, poverty, barbarism, idleness, and a barren desert, we may then enjoy the same dispatch of causes that is so highly extolled in some foreign countries. But common sense and a little experience will convince us, that more time and circumspection are requisite in causes, where the suitors have valuable and permanent rights to lose, than where their property is trival and precarious, and what the law gives them to-day, may be seized by their prince tomorrow. In Turkey, says Montesquieu (r), where little regard is shewn to the lives or fortunes of the subject, all causes are quickly decided: the basha, on a summary hearing, orders which party he pleases to be basti

nadoed, and then sends them about their business. But in [*424] *free states the trouble, expense, and delays of judicial proceedings are the price that every subject pays for his liberty and in all governments, he adds, the formalities of law increase, in proportion to the value which is set on the honour, the fortune, the liberty, and life of the subject.

From these principles it might reasonably follow, that the English courts should be more subject to delays than those of other nations; as they set a greater value on life, on liberty, and on property. But it is our peculiar felicity to enjoy the advantage, and yet to be exempted from a proportionable share of the burthen. For the course of the civil law, to which most other nations conform their practice, is much more tedious than ours; for proof of which I need only appeal to the suitors of those courts in England, where the practice of the Roman law is allowed in its full extent. And particularly in France, not only our Fortescue (s) accuses (on his own knowledge) their courts of most unexampled delays in administering justice; but even a writer of their own (t) has not scrupled to testify, that there were in his time more causes there depending than in all Europe besides, and some of them an hundred years old. But (not to enlarge on the prodigious improvements which have been made in the celerity of justice by the disuse of real actions, by the statutes of amendment and jeofails (u), and by other more modern regulations, which it now might be indelicate to remember, but which posterity will never forget) the time and attendance afforded by the judges in our English courts are also greater than those of many other countries. In the Roman calendar there were in the whole year but twenty-eight judicial or triverbial (w) days allowed to the praetor for deciding causes (x): whereas, with us, one-fourth of the

(q) See page 327.

(r) Sp. L. b. 6, ch. 2.

(s) de Laud. LL. c. 53.

(1) Bodin. de Republ. 1. 6, c. 6.

(u) See page 407.

(w) Otherwise called dies fasti in quibus licebat praetori fari tria verba, do, dico, addico. (Calv Lez. 285.)

(c) Spelman of the terms, 4, c. 2.

year is term time, in which three courts constantly sit for the dispatch of matters of law; besides the very close attendance of the court of chancery for determining "suits in equity, and the numerous [425] courts of assise and nisi prius that sit in vacation for the trial of matters of fact. Indeed there is no other country in the known world, that hath an institution so commodious and so adapted to the dispatch of causes, as our trial by jury in those courts for the decision of facts; in no other nation under heaven does justice make her progress twice in each year into almost every part of the kingdom, to decide upon the spot by the voice of the people themselves the disputes of the remotest provinces. And here this part of our commentaries, which regularly treats only of redress at the common law, would naturally draw to a conclusion. But, as the proceedings in the courts of equity are very different from those at common law, and as those courts are of a very general and extensive jurisdiction, it is in some measure a branch of the task I have undertaken, to give the student some general idea of the forms of practice adopted by those courts. These will therefore be the subject of the ensuing chapter.

CHAPTER XXVIII.

OF PROCEEDINGS IN THE COURTS OF
EQUITY (1).

BEFORE we enter on the proposed subject of the ensuing chapter, viz. the nature and method of proceedings in the courts of equity, it will be proper to recollect the observations which were made in the beginning of .

(1) That the courts of equity and courts of aw are not opposed to each other, and often concur in the exercise of their powers, to promote the ends of substantial justice, is not now dis. puted. It is said, that matters of fact should be left to courts of law for the decision of a jury, 1 Ridgway's Parl. Car. 9; and issues are oftentimes directed for that purpose; yet "there is no doubt," says Lord Eldon, "that according to the constitution of this court, it may take upon itself the decision of every fact put in issue upon the record." And again, This court has a right (to be exercised very tenderly and sparingly) of deciding without issues." 9 Ves. 168. The general rule is, that a court of equity will never exercise juris diction over criminal proceedings. Yet in a case where the plaintiffs indicted defendant's agent at the sessions, where the plaintiffs themselves were judges, for a breach of the peace, lord Hardwicke made an order to restrain the prosecution till after hearing of the cause and further order; and where a bill is brought to quiet possession, if the plaintiff afterwards prefer an indictment for forcible entry, this court will stop the proceedings upon such indictment. 2 Atk. 302. The court of chancery has no jurisdiction to prevent a crime, except in the protection of infants. Therefore it is said, that

the publication of a libel cannot be restrained. 2 Swan. 413, (see ante, 2 vol. 407. in notes.) Nor will the court compel a discovery in aid of criminal proceedings. 2 Ves. 398. The court of chancery has a concurrent jurisdiction with the admiralty, Gilb. Eq. Rep. 228; and may repeal letters of reprisal, after a peace, though there is a clause in the patent that no treaty of peace shall prejudice it. 1 Vern. 54. So equity may relieve after verdict in K. B. or C. P., and even grant a perpetual injunction after five trials at law on the same point and verdicts the same way but equity is very tender in the exercise of this power. 2 P. W. 425. 10 Mod. 1. And a court of equity will not review the orders of the exchequer as a court of revenue; nor interfere where that court, as a court of revenue, is competent to decide the subject-matter. 3 Ridgw. P. C. 80.

Matters arising out of England.-A question concerning the right and title to the Isle of Man may be determined in a court of chancery. 1 Ves. 202. Where the defendant is in England, though the cause of suit arose in the plantations, if the bill be brought here, the court agens in personam may, by compulsion of the person, force him to do justice, for the jurisdiction of the chancellor is not ousted, 3